915 F.

2d 899

UNITED STATES of America, Plaintiff-Appellee,

v.
Sherrie Tuggle APPLE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Stacy Nevin APPLE, a/k/a Dr. Stachel Pomme, DefendantAppellant.
Nos. 89-5066, 89-5423.

United States Court of Appeals,

Fourth Circuit.
Argued May 11, 1990.
Decided Oct. 2, 1990.
As Amended Nov. 6, 1990.

John Kenneth Zwerling, argued, Zwerling, Mark & Sutherlund, P.C.,

Alexandria, Va., for defendants-appellants.
Miriam Aroni Krinsky, Asst. U.S. Atty., argued, Baltimore, Md.
(Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for
plaintiff-appellee.
Before WIDENER and PHILLIPS, Circuit Judges, and SMITH, Senior
Judge, United States Court of Appeals for the Federal Circuit, sitting by
designation.
PHILLIPS, Circuit Judge:

Stacy and Sherrie Apple were each convicted on multiple felony narcotics
counts, Sherrie after a jury trial and Stacy upon his guilty plea.1 Both appellants
had filed various pre-trial motions relating to allegedly illegal electronic
surveillance; the district court denied all the motions. On appeal, the Apples
challenge the district court's rulings on their pre-trial motions and adverse
rulings made by the court at their respective sentencing hearings. We find no
error in the district court's disposition of Stacy's pre-trial motions. The court,

however, erred in rejecting Sherrie's motions, and we must remand her case for
further proceedings. The district court also failed to make factual findings that
would support enhancement of the Apples' sentences for possession of a firearm
during the commission of a drug offense; we therefore remand that issue to the
district court.
2

* In late 1986, Montgomery County, Maryland, police obtained information

from anonymous sources that Stacy was involved in narcotics trafficking. A
letter from another anonymous source implicating Stacy in narcotics trafficking
was circulated among several FBI offices in early 1987. Stacy's name had also
surfaced during a joint federal-state investigation in the Charlottesville,
Virginia, area. The phone of Trevis Poole was tapped by Virginia State Police,
and on information obtained through the wiretap Poole and others were
indicted and eventually convicted. Stacy was identified during the grand jury
inquiry as one of Poole's narcotics suppliers. FBI agents involved in the
Virginia investigation passed along to FBI agents in Maryland the information
implicating the Apples; that information was also passed along to the
Montgomery County Police.

Local and federal authorities intensified their investigation of the Apples,

contacting informants and securing a pen register tap on the Apples' home
phone. The Montgomery County Police eventually obtained sufficient
information to seek a search warrant for the Apples' home. The police obtained
the warrant and executed it on August 14, 1987, seizing, inter alia, four
handguns,2 a small quantity of marijuana, drug paraphernalia, and assorted
records. Stacy was then arrested for conspiracy to distribute cocaine.3

The federal investigation of the Apples continued. An informant introduced an

undercover FBI agent to the Apples. The agent purchased and arranged for the
distribution of narcotics, often in meetings held at the Apples' New York City
apartment. Based on the activities of the undercover agent and information
attributed to confidential informants unrelated to the Virginia investigation, the
FBI sought and obtained a warrant to search the Apples' apartment on May 20,
1988. Upon execution of this warrant, federal officials seized assorted
documents and records, and one handgun. Stacy was arrested by federal
authorities the next day on the street in front of the New York apartment.
Sherrie, who had apparently separated from her husband several weeks earlier,
voluntarily surrendered to authorities approximately two weeks after Stacy had
been arrested.

A grand jury in the district of Maryland indicted the Apples and two others on
multiple felony counts. The Apples were charged in two separate conspiracy

counts--count one charged conspiracy to distribute and possess with intent to

distribute cocaine during the period from January 1986 until May 20, 1988;
count two charged conspiracy to distribute and possess with intent to distribute
marijuana from January 1988 until May 20, 1988.4 Both were also charged in
counts three through five with distribution of cocaine on certain dates in 1988,5
in count six with attempt to possess cocaine with intent to distribute,6 in count
seven with possession of cocaine with intent to distribute,7 and in count nine
with use of a telephone in facilitating the commission of a felony.8
6

Sherrie filed related pre-trial motions (for disclosure of electronic surveillance,

expanded discovery, extension of time to complete discovery, suppression of
evidence seized in the Maryland search, and to quash the indictment) seeking
information about the electronic surveillance in Virginia. She specifically
identified the Poole phone tap, but did not identify any phone calls with the
suspect phone during the period of the surveillance. She did aver that she heard
unusual noises on her phone and noticed unexplained interruptions of service.
The government argued that Sherrie had failed to make the necessary prima
facie showing to trigger the government's obligation to affirm or deny the
occurrence of the alleged unlawful surveillance under 18 U.S.C. Sec. 3504(a)
(1), but the government also submitted a letter from the Department of Justice
indicating that a check by the FBI and other federal agencies revealed no
surveillance of the Apples.

The district court did not rule on the question of the legality of the Virginia
phone tap.9 Rather, assuming arguendo that the wiretap was illegal, the court
ruled that Sherrie lacked standing to raise the electronic surveillance issue
because she had failed to show that she was an "aggrieved person" under 18
U.S.C. Sec. 2510(11) by failing to show that she was a party to any of the
intercepted Virginia phone conversations. The court also ruled, alternatively,
that there was sufficient evidence developed independently of the Virginia
investigation to support probable cause for the Maryland search warrant; other
evidence to be presented at trial was also unrelated to the Virginia
investigation.

On the eve of her trial,10 Sherrie moved the court to reconsider its rulings. She
presented her own affidavit and the affidavit of Patty Poole, Trevis Poole's
sister-in-law, which indicated that Sherrie had made a call to the tapped number
during the period of the surveillance and that both she and Stacy had left
messages on other occasions. A hearing was held on the motion to reconsider.
Though it noted that the new affidavits did not identify the specific dates of the
calls or their content, the court indicated that it "appear[ed]" that Sherrie had
made a prima facie showing of illegal surveillance. Citing the Department of

Justice letter, the court ruled that the government had denied that the Apples
were surveilled and that there was no reason to order additional disclosure. FBI
case agent Patrick Patterson and Officer Scott Hammond, the principal
Montgomery County Police officer involved in the investigation, each testified
at the hearing that he had received information from the Virginia investigation,
but each was personally unaware of any intercepted conversations involving the
Apples. The court also credited the testimony of Agent Patterson to the effect
that the Assistant United States Attorney (AUSA) involved in the Virginia
investigation had told him (Patterson) that to his (the AUSA) knowledge, none
of the wiretapped phone conversations involved the Apples.
9

After a jury trial, Sherrie was convicted on all five felony counts presented to
the jury.11 At her sentencing, the court enhanced Sherrie's Guidelines base
offense level by two levels under United States Sentencing Guidelines
(U.S.S.G.) Sec. 2D1.1(b)(1) for possession of a firearm during the commission
of a drug offense, finding that Sherrie "was well-aware of the existence of
firearms in her home." The court then found that a downward departure under
id. Sec. 5K2.13, p.s. was appropriate to reflect Sherrie's diminished capacity.12
The court departed downward from the applicable Guidelines range of 151 to
188 months and imposed a sentence of 84 months.

10

After Sherrie was convicted and shortly before he was to be tried, Stacy entered
into a plea agreement with the government. Earlier, he too had claimed that he
was the victim of illegal electronic surveillance13 pointing to grand jury
testimony, which indicated that Stacy spoke regularly with Trevis Poole, and
the affidavit of his counsel, in which counsel averred that Stacy had indicated
that he had telephoned the Pooles during the period that Trevis Poole's phone
was tapped. The district court, relying on its earlier rulings, held that Stacy
lacked standing to raise the issue and alternatively that there was sufficient
evidence developed independently from the Virginia investigation.

11

Stacy then entered a Fed.R.Crim.P. 11(a)(2) conditional plea of guilty to counts

one, two, four, and six of the indictment. Because Stacy objected to certain
specific statements in the government's proposed statement of facts, which was
incorporated into the plea agreement, he changed four statements of "fact" to
indicate rather that a given witness would testify to those facts. He also struck
the reference in the plea agreement itself that he agreed with the statement of
facts.14

12

While Stacy was incarcerated awaiting sentencing, he was diagnosed as

suffering from large cell lymphoma. The cancer was successfully treated with
radiation and chemotherapy, and it was in remission at the time Stacy was

sentenced. Two physicians testified at Stacy's sentencing hearing that he had

approximately a 70% chance of long-term survival without recurrence of the
cancer. Stacy moved at his sentencing hearing for downward departure based
on his illness, but the court denied the motion. The court observed that:
13

The final and perhaps most significant issue before the Court in these
sentencing proceedings is whether there are mitigating factors which would
require the Court to depart and give a sentence below the guideline range which
the Court has determined. See Section 5K2.0. Although defendant is indeed
suffering from a serious and perhaps life-threatening disease, I am not satisfied,
after hearing the evidence and after considering the record, that the defendant is
entitled to a downward departure. It is not, in the opinion of this Court, grounds
for departure that defendant contracted a serious disease after committing these
crimes.

14

He is presently in remission, the long-term prognosis is good, and if there is a

relapse, he can receive adequate monitoring and treatment for his cancer at
appropriate federal medical facilities. The fact that there is a possibility that he
might not survive during the period of his incarceration is not in my opinion
grounds for a downward departure under all the facts here.

15

J.A. at 797-98.

16

Stacy raised two other issues at his sentencing. He sought the two level
reduction in base offense level for acceptance of responsibility under U.S.S.G.
Sec. 3E1.1. The court found, however, that Stacy had not affirmatively
accepted personal responsibility for his offenses. The court noted that his guilty
plea alone did not justify the reduction, that Stacy had not cooperated with the
government, and that he did not agree to the government's statement of the
facts, having struck the word "agree" from the plea agreement. The court also
enhanced Stacy's base offense level two levels pursuant to Guidelines Sec.
2D1.1(b)(1) to reflect his "possession" of a firearm during the commission of a
drug offense. The court noted simply that one or more firearms had been found
in the Apples' residences in Maryland and New York. The court sentenced
Stacy to 220 months, near the bottom of the applicable Guidelines range of
210-262 months.

17

This appeal followed.

II
18

Appellants first challenge the district court's rulings on the electronic

18

Appellants first challenge the district court's rulings on the electronic

surveillance issue. Stacy argues that the court erred in holding that he lacked
standing to raise the issue. Both appellants contend that the court erred when it
accepted the government's denial that conversations involving the Apples had
been intercepted. Finally, the Apples charge that the taint hearing held by the
court was meaningless and its subsequent independent source ruling
fundamentally flawed because they never had access to the recordings from
which they could determine whether the relevant evidence was tainted by the
illegal electronic surveillance.

19

* Congress enacted a comprehensive scheme for the regulation of wiretapping

and electronic surveillance in Title III of the Omnibus Crime Control and Safe
Streets Act of 1968. Pub.L. No. 90-351, 82 Stat. 211 (1968); see Gelbard v.
United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972).
Title III provided, inter alia, that wire and oral communications intercepted in
accordance with the mandated procedures could be disclosed and used under
certain circumstance. See 18 U.S.C. Sec. 2517. But if a wire or oral
communication was intercepted in violation of the statutory provisions, "no part
of the contents of such communication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or other proceeding in or before
any court, grand jury, ... or other authority of the United States." Id. Sec. 2515.
And "[a]ny aggrieved person in any trial, hearing, or proceeding ... may move
to suppress the contents of any wire or oral communication intercepted pursuant
to this chapter," on grounds including that "the communication was unlawfully
intercepted." Id. Sec. 2518(10)(a)(i). An "aggrieved person" means "a person
who was a party to any intercepted wire, oral, or electronic communication or a
person against whom the interception was directed." Id. Sec. 2510(11).

20

Congress addressed "litigation concerning sources of evidence" in the

Organized Crime Control Act of 1970. Pub.L. No. 91-452, tit. VII, Sec. 702(a),
84 Stat. 923, 935 (1970).

21 any trial, hearing, or other proceeding ... upon a claim by a party aggrieved that
In
evidence is inadmissible because it is the primary product of an unlawful act or
because it was obtained by the exploitation of an unlawful act, the opponent of the
claim shall affirm or deny the occurrence of the alleged unlawful act....
22

18 U.S.C. Sec. 3504(a)(1). Section 3504(b) establishes the link with Title III,
defining "unlawful act" as "the use of any electronic, mechanical, or other
device (as defined in section 2510(5) of this title) in violation of the
Constitution or laws of the United States or any regulation or standard
promulgated pursuant thereto." Id. Sec. 3504(b). Further, a "party aggrieved"
under Sec. 3504(a)(1) includes an "aggrieved person," as defined in Title III,

and any person on whose premises the intercepted communications occurred.

See United States v. Williams, 580 F.2d 578, 583 & n. 19 (D.C.Cir.1978).
23

Under these related provisions, a party claiming to be the victim of illegal

electronic surveillance must first demonstrate that his interests were affected
before the government's obligation to affirm or deny is triggered. This
"standing" requirement, see H.Rep. No. 1549, 91st Cong., 2d Sess., ----,
reprinted in 1970 U.S.Code Cong. & Admin.News 4007, 4027, is met if a
definite "claim" is made by an "aggrieved party." A cognizable "claim" need be
no more than a "mere assertion," provided that it is a positive statement that
illegal surveillance has taken place. See United States v. Tucker, 526 F.2d 279,
282 & n. 4 (5th Cir.1976). But the claimant must also make a prima facie
showing that he was "aggrieved" by the surveillance; that is, that he was a party
to an intercepted communication, that the government's efforts were directed at
him, or that the intercepted communications took place on his premises. This
critical showing may not be based on mere suspicion; it must have at least a
"colorable basis." See United States v. Pacella, 622 F.2d 640, 643 (2d
Cir.1980).

24

Once a party makes such a showing, the government must "affirm or deny" the
occurrence of the alleged unlawful act. 18 U.S.C. Sec. 3504(a)(1). Litigation
has focused on the adequacy of the government's denial. In construing the plain
language of the statute that the government must "deny" the claimant's
allegations, courts have focused on three factors: the specificity and amount of
information that forms the basis of the government's denial, the source or
sources for that information, and the manner in which the information is
presented to the court. See In Grand Jury 11-84, 799 F.2d 1321, 1324 (9th
Cir.1986).

25

First, the required specificity of the prosecution's denial is a function of the

specificity of the claimant's allegations. See United States v. Wylie, 625 F.2d
1371, 1376 (9th Cir.1980). The government's general denial of a claimant's
general allegations of illegal electronic surveillance is sufficient, see, e.g., In re
Grand Jury 11-84, 799 F.2d at 1324; where the claimant makes a stronger
showing, the government's denial must be factual, unambiguous, and
unequivocal. See Cruz v. Alexander, 669 F.2d 872, 876 (2d Cir.1982), clarified,
708 F.2d 31 (2d Cir.1983); United States v. See, 505 F.2d 845, 856 (9th
Cir.1974).

26

The government's denial of illegal electronic surveillance is usually based on

inquiries to the relevant government agencies and requests for searches of
agency files. The predicate for acceptance of the government's denial is that the

government official making the denial have sufficient information upon which
a reasonable response can be based.
27 general, we shall expect the Government's denial to be amplified to the point of
In
showing that those responding were in a position, by firsthand knowledge or through
inquiry, reasonably to ascertain whether or not relevant illegal activities took place....
28

In re Quinn, 525 F.2d 222, 225 (1st Cir.1975). Again, courts measure the
adequacy of the source or sources of information against the specificity of the
claimant's allegations on a case-by-case basis. The government agencies closest
to the investigation must be checked, see In re Millow, 529 F.2d 770, 774 (2d
Cir.1976), and the government's denial should provide some basis for
concluding that the agencies checked are those that reasonably might have been
involved. See United States v. Alter, 482 F.2d 1016, 1027 (9th Cir.1973).
Courts rightly have been reluctant to find the government's denial inadequate
for failure to make inquiries of state or local agencies that conceivably could
have engaged in the alleged illegal surveillance. See In re Grand Jury
Proceedings, 664 F.2d 423, 428 & n. 11 (5th Cir. Unit B Nov. 1981) (per
curiam) (rejecting argument that federal government must extend scope of
inquiry to cooperating state agencies; reserving question where federal agency
"exercised considerable dominion and control over a state agency's resources in
pursuing a federal investigation"); United States v. Kember, 648 F.2d 1354,
1370 (D.C.Cir.1980) ("nothing in [Sec. 3504(a)(1) ] that requires the
Government to inquire into state or local electronic monitoring"); In re Brogna,
589 F.2d 24, 29 (1st Cir.1978) (government's denial adequate despite failure to
check records of assisting state agencies; dicta that "in different circumstances
the federal authorities might ... be required to inquire of a cooperating state
agency").

29

Finally, the manner or form in which the government presents its denial may be
critical. While courts have sometimes required the government's denial to be in
the form of a sworn affidavit, unsworn letters detailing the scope of the
government's inquiry usually have been accepted. See United States v.
Williams, 580 F.2d at 585 n. 38. The statute does not require the government to
deny the claimant's allegations through live witness testimony, but where such
testimony is presented, it is accorded greater weight than affidavits or unsworn
letters. See, e.g., In re Grand Jury, 524 F.2d 209, 216 (10th Cir.1975).

30

If the government affirms that illegal electronic surveillance of the claimant has
taken place, the government must provide to the claimant the tapes or
transcripts of the intercepted communications. See Alderman v. United States,
394 U.S. 165, 182-83, 89 S.Ct. 961, 971-72, 22 L.Ed.2d 176 (1969). Only the

claimant's own conversations or those which took place on his premises must
be disclosed and turned over by the government; the trial court has discretion to
determine whether additional discovery should be granted. Id. at 185, 89 S.Ct.
at 972; United States v. Williams, 580 F.2d at 583-85. The claimant then can
challenge as tainted evidence obtained as a result of those specific intercepted
communications. See Alderman, 394 U.S. at 176, 180-81, 89 S.Ct. at 968, 97071; United States v. Williams, 580 F.2d at 584 n. 23. "The question as stated in
Wong Sun v. United States, 371 U.S. 471, 488 [83 S.Ct. 407, 417, 9 L.Ed.2d
441] (1963), is 'whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be purged of
the primary taint.' " Alderman, 394 U.S. at 180-81, 89 S.Ct. at 970; see 18
U.S.C. Secs. 3504(a), 2515, 2518(10)(a)(i).
31

At the taint hearing, the claimant has the initial burden of coming forward with
specific evidence demonstrating taint. See Alderman, 394 U.S. at 183, 89 S.Ct.
at 972; United States v. Buck, 548 F.2d 871, 874 (9th Cir.1977). The
government may then avoid a finding of taint, however, by demonstrating by a
preponderance of the evidence that it acquired the evidence from an
independent source. See Alderman, 394 U.S. at 183, 89 S.Ct. at 972; United
States v. Buck, 548 F.2d at 874. The trial court's decision whether to order
additional disclosure beyond the records of the communications involving the
claimant is a discretionary ruling entitled to appropriate deference. See United
States v. Bissell, 634 F.2d 1228, 1234 (9th Cir.1980); see also Alderman, 394
U.S. at 185, 89 S.Ct. at 972. And a determination that the government obtained
evidence from an independent, untainted source is a factual one which must be
upheld unless clearly erroneous. See United States v. Garcilaso de la Vega, 489
F.2d 761, 763 (2d Cir.1974); see also United States v. Villano, 529 F.2d 1046,
1058 (10th Cir.1976) (trial court's finding of independent source sustained
where "amply supported" in the record).

B
32

Stacy first challenges the district court's ruling that he lacks standing to raise
the issue of the allegedly illegal surveillance. Stacy's claim that he was a "party
aggrieved" under Sec. 3504(a)(1) was based exclusively on the ground that he
was a party to telephone conversations intercepted by the Virginia state
authorities through the tap of Trevis Poole's telephone. He relied principally on
the averment of his counsel that "he [Stacy] advised me that he to [sic] had
telephoned the Poole's in Fluvanna County, Virginia, in either May, June or
July 1985." In addition, he cited grand jury testimony that he spoke "regularly"
on the telephone to Trevis Poole.

33

We agree with the district court that Stacy's showing was insufficient to
demonstrate standing. In this case, unlike most of the others where a party
raises the issue of alleged illegal surveillance, there has never been any question
that Trevis Poole's phone was tapped. Yet Stacy never averred that he
completed telephone calls to the number known to have been tapped during the
period that surveillance took place. In United States v. Williams, 580 F.2d at
584, the court held that the defendants failed to carry the threshold burden of
demonstrating that any of their conversations were intercepted when they failed
to positively aver that they had completed calls to the tapped numbers. We
think that in the similar circumstances here, Stacy's failure to aver that he was
involved in telephone conversations on the tapped line is also fatal to his claim.
The grand jury testimony Stacy cites amounts to no more than "mere suspicion"
that he might have talked to Trevis Poole on the tapped phone during the
relevant period, see United States v. Pacella, 622 F.2d at 643; it contains no
specific reference to times or to the phone line that was tapped. Likewise,
counsel's affidavit fails to identify whether any specific calls were completed to
Trevis Poole's phone. Finally, though he emphasized that any "regular"
communication from his home in Maryland with Trevis Poole in Virginia
would have had to have been by phone, Stacy presented no phone company
records to substantiate his claim. We hold that Stacy failed to make the
necessary prima facie showing that he was a "party aggrieved" under Sec.
3504(a)(1).

C
34

Sherrie, like Stacy, based her claim that she was an aggrieved party under 18
U.S.C. Sec. 3504(a)(1) solely on the ground that she was a party to telephone
conversations that were intercepted by Virginia authorities. In contrast to Stacy,
however, Sherrie presented in support of her motions her own affidavit, in
which she specifically averred that she had a conversation with Patty Poole on
Trevis Poole's phone during the period that his phone was tapped by Virginia
authorities. Patty Poole also averred that she had a conversation with Sherrie on
her brother-in-law's telephone during the relevant period. Though the district
court's ruling is not entirely clear, we agree with the court's apparent ruling and
hold that Sherrie made a sufficient prima facie showing that she was an
aggrieved party under Sec. 3504(a)(1).

35

Sherrie's prima facie showing triggered the government's obligation to affirm or

deny the occurrence of the alleged unlawful interceptions. The government
denied that it had intercepted any of Sherrie's conversations. In support of its
position, the government offered an unsworn letter from the Department of
Justice which indicated that records checks by six federal agencies15 disclosed

no evidence that the Apples had been electronically monitored by the

respective agencies except for consensual monitoring by the FBI.16 The district
court accepted the letter as the government's "unequivocal denial" and refused
to order additional disclosure. The court also credited the testimony of FBI
Agent Patterson that the AUSA involved in the Virginia investigation had told
Patterson that the AUSA was unaware of any interceptions of conversations
involving the Apples.
36

We cannot agree that the government's denial was sufficient in light of Sherrie's
specific claim that her conversations were intercepted during the Virginia state
wiretap of Trevis Poole's telephone. Though in response to Sherrie's initial
motion the government indicated that it was unaware of any electronic
intercepts, it later acknowledged the existence of the Virginia wiretap in its
supplemental response to the motion and indicated that it was requesting the
state agencies involved to conduct the necessary records inquiry. See J.A. at 80.
Sherrie then filed additional motions that focused the inquiry on the Virginia
wiretap, and the district court deferred ruling on the related electronic
surveillance motions. There was no question that a state wiretap was involved,
and in these circumstances a check of only federal agencies was not an adequate
response to Sherrie's claim. See In re Millow, 529 F.2d at 774; United States v.
Alter, 482 F.2d at 1027.

37

At the motions hearing, the government presented no evidence of any official

inquiry of Virginia state authorities. Rather, the government presented the
testimony of Agent Patterson and Officer Hammond. Though each testified that
he was personally unaware of any intercepted conversations involving the
Apples, their testimony showed that neither was involved in the investigation of
the Apples until some time after the wiretap was removed. And, critically, no
evidence was presented that either had reviewed the logs of the surveillance or
listened to any of the tapes, the kind of first-hand inspection required in
response to Sherrie's particularized claim. See United States v. Gardner, 611
F.2d 770, 774 (9th Cir.1980). Agent Patterson's hearsay testimony, deemed
significant by the district court, is similarly deficient--his testimony provides no
assurance that any of his sources were in a position reasonably to ascertain, by
having checked the tapes or the logs, whether or not Sherrie's conversations had
been intercepted. See In re Grand Jury 11-84, 799 F.2d at 1325; In re Quinn,
525 F.2d at 225.

38

In order to affirm the district court's ruling that the government's response was
adequate we would be required to hold that a federal prosecutor is never
required to check with state agencies when a claimant makes a prima facie
showing under Sec. 3504(a)(1) that she was subjected to illegal surveillance by

state authorities, even where it is undisputed that the federal investigation was
aided by the state authorities. No court, as far as we have been able to
determine, has squarely faced this question. In some cases, where the
government has admitted that the claimant's communications had been
intercepted by state or local authorities, the surveillance records have been
disclosed. See, e.g., United States v. Villano, 529 F.2d at 1056-58. In cases
where courts have found the government's denial adequate despite the failure to
check with state or local authorities, there was no clear evidence that there was
a nonfederal wiretap. And those courts did not attempt to state a blanket rule
that inquiry of state or local authorities would never be required. See In re
Grand Jury Proceedings, 664 F.2d at 428 & n. 11; In re Brogna, 589 F.2d at 29.
39

Congress' intent, our ultimate guideline, is not plainly evident. The plain
language of the statute requires the government only to "affirm or deny" the
claim, and the legislative history sheds little additional light on what this
implies. Courts have nevertheless uniformly held that to "deny" a claim under
Sec. 3504(a) the government must have some reasonable basis for asserting that
the alleged illegal surveillance did not occur. Congress did contemplate some
federal/state overlap in this area. Though Sec. 3504(a) itself applies only in
proceedings conducted under the authority of the United States, see H.Rep. No.
1549, 91st Cong., 2d Sess., ----, reprinted in 1970 U.S.Code Cong. &
Admin.News 4007, 4027, the "unlawful act" alleged under that section may be
any use of electronic surveillance equipment in violation of the Constitution or
federal law. See 18 U.S.C. Sec. 3504(b). Sherrie claims that the Virginia
wiretap violated 18 U.S.C. Sec. 2518(1)(c) and Va.Code Ann. Sec. 19.2-68(A)
(3) (1990),17 and federal law requires that a state-authorized wiretap conform to
federal and applicable state law. See 18 U.S.C. Sec. 2516(2) (state court judge
of competent jurisdiction may issue order authorizing or approving interception
of wire communications "in conformity with section 2518 ... and with the
applicable State statute"). Sherrie has stated a claim under Sec. 3504(a)(1) and
made the requisite prima facie showing to trigger the government's obligation
to respond; her claim may be reasonably denied under the statute only upon the
government's showing that the Virginia wiretap was not illegal or that the state
authorities did not intercept any of her communications.

D
40

The district court also ruled, assuming that the Virginia wiretap was illegal, that
Sherrie had standing to raise the issue, and that the government's denial was not
adequate, that there was sufficient evidence from sources independent of the
Virginia investigation "to support probable cause for the search of the Apples'
[Maryland] residence and probable cause for other evidence presented to the

grand jury and to be presented at the trial." J.A. at 364. On this alternative basis
the court held that Sherrie's related motions could be denied, and the
government contends that this court can affirm the denial on this independent
source rationale. The court's independent source rationale is not inconsistent
with the relevant statutes, but we think that its ruling in this case was
premature. Sherrie had no meaningful opportunity to demonstrate the extent of
the taint from any communications that might have been intercepted by
Virginia authorities. Further proceedings are required before any independent
source determination can be made.
41

The relevant statutes, 18 U.S.C. Secs. 3504(a)(1), 2515, and 2518(10)(a),

proscribe the use of illegally intercepted communications and the fruit of that
poisonous tree. The contents of illegally intercepted wire communications and
the "evidence derived therefrom" may not be received into evidence, id. Sec.
2515, and may be suppressed, id. Sec. 2518(10)(a); the government must affirm
or deny the occurrence of alleged illegal interceptions upon a claim that
evidence is inadmissible "because it is the primary product of an unlawful act
or because it was obtained by the exploitation of an unlawful act," id. Sec.
3504(a)(1). Congress intended, however, that the statutory provisions would
"largely reflect[ ] existing law," including limitations on the suppression
remedy, as developed under fourth amendment jurisprudence.

42
[Section
2515] largely reflects existing law. It applies to suppress evidence directly
(Nardone v. United States, 302 U.S. 379 [58 S.Ct. 275, 82 L.Ed. 314] (1937)) or
indirectly obtained in violation of the chapter. (Nardone v. United States, 308 U.S.
338 [60 S.Ct. 266, 84 L.Ed. 307] (1939)). There is, however, no intention to change
the attenuation rule. See Nardone v. United States, 127 F.2d 521 (2d [Cir.], cert.
denied, 316 U.S. 698 [62 S.Ct. 1296, 86 L.Ed. 1767] (1942); Wong Sun v. United
States, 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441] (1963). Nor generally to press the
scope of the suppression role beyond present search and seizure law. See Walder v.
United States, 347 U.S. 62 [74 S.Ct. 354, 98 L.Ed. 503] (1954).
43

S.Rep. No. 1097, 90th Cong., 2d Sess., 96, reprinted in 1968 U.S.Code Cong.
& Admin.News, 2112, 2185 (parallel citations omitted); see H.Rep. No. 1549,
91st Cong., 2d Sess., ----, reprinted in 1970 U.S.Code Cong. & Admin.News
4007, 4027 ("Section 3504(a) establishes procedures for the disposition of
claims based upon allegations that evidence is the primary product of an
unlawful act or has been derived from the 'exploitation' of an unlawful act. See
Wong Sun v. United States, 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441]
(1963).") (parallel citations omitted); see also United States v. Giordano, 416
U.S. 505, 558-59, 94 S.Ct. 1820, 1847-48, 40 L.Ed.2d 341 (1974) (Powell, J.,
concurring in part and dissenting in part).

44

In this case, the district court applied the generally accepted rule that the
inclusion of certain illegally obtained information in the application for a search
warrant does not require suppression of the evidence seized under the warrant
("fruit of the poisonous tree") if, excluding the illegally obtained information,
probable cause for the issuance of the warrant could still be found. See, e.g.,
United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir.1987); see also
Giordano, 416 U.S. at 555, 94 S.Ct. at 1845 (Powell, J., concurring in part and
dissenting in part). The court acknowledged, without deciding, Sherrie's
argument that sources identified in the application for the Maryland search
warrant had been developed through the Virginia investigation. But the court
found, crediting the testimony of Officer Hammond, that other, untainted
information sufficiently established probable cause and ruled that the evidence
seized from the Apples' residence would not be suppressed.

45

The court also determined that other evidence forecasted by the government
derived from wholly independent sources. Evidence sufficiently attenuated
from allegedly illegal surveillance may also be admissible, even if the
government had first been put on notice that the Apples might be involved in
criminal activity by the illegal surveillance. See United States v. Friedland, 441
F.2d 855, 859 (2d Cir.1971). While the basis for this ruling is not explicit, it
seems that the court again credited the testimony of Officer Hammond and
Agent Patterson.

46

We cannot, however, affirm the district court's rulings simply on the basis that
the court can, in certain circumstances, make independent source and
attenuation rulings that would permit admission of evidence derivative at some
level from illegally intercepted conversations. The Court in Alderman
specifically addressed the procedures to be followed in resolving the "ultimate
issue" before the court--whether the evidence against the defendant "grew out
of his illegally overheard conversations or conversations occurring on his
premises." 394 U.S. at 180, 89 S.Ct. at 970. The fundamental teaching of
Alderman is that the claimant must be provided with the records of his own
illegally intercepted communications so that he has a reasonable opportunity to
prove the extent of the taint. 394 U.S. at 182-85, 89 S.Ct. at 971-73. Section
3504(a)(1) facilitates the claimant's effort to demonstrate that evidence
employable against him is tainted by requiring the government to affirm or
deny the occurrence of the alleged unlawful act. See United States v. Williams,
580 F.2d at 583. The same logic that compelled the Court's conclusion that
surveillance records must be disclosed to the claimant, not screened for
relevance by the government, see Kolod v. United States, 390 U.S. 136, 137-38,
88 S.Ct. 752, 753, 19 L.Ed.2d 962 (1968) (per curiam), or by the trial court in
camera, see Alderman, 394 U.S. at 182-84, 89 S.Ct. at 971-72, compels our

conclusion in this case--our criminal justice system depends upon adversary

proceedings with well-informed advocates as the principal means for attaining
justice and reducing the incidence of error. "To compel a party who objects to
the use of evidence obtained as a result of unlawful wiretapping to go forward
with a showing of taint, and then to withhold from him the means or tools to
meet that burden, is to create an absurdity in the law." United States v. Huss,
482 F.2d 38, 47 (2d Cir.1973) (citation omitted). The district court's erroneous
ruling respecting the government's denial under Sec. 3504(a)(1) undermined the
validity of its subsequent independent source rulings because it precluded
Sherrie from demonstrating in informed adversary proceedings the extent of the
taint from any of her conversations that might have been intercepted during the
Virginia investigation.
47

Case law supports this disposition. The government cites in support of its
position United States v. Peterson, 812 F.2d 486 (9th Cir.1987), and United
States v. Bissell, 634 F.2d 1228 (9th Cir.1980). Peterson is inapposite; the court
there held that Title III was not applicable in the extraterritorial context at issue.
812 F.2d at 492.18 In Bissell, the government disclosed to the appellant the
transcripts of her conversations that had been intercepted. 634 F.2d at 1230.
The court was thus in a position to make its ruling that evidence employed
against the appellant was untainted, and its decision to reject the appellant's
request for wide-ranging disclosure was a permissible exercise of discretion.
See id. at 1231-34. United States v. Villano, 529 F.2d 1046 (10th Cir.1976),
also fits this pattern. In Villano, the government furnished the defendants with
the transcripts of the conversations intercepted by local police. Id. at 1058.
After an adversary hearing, the district court found that, despite some evidence
of collaboration between the local and federal authorities, the government had
carried its burden of showing that its evidence was untainted, and the court of
appeals affirmed. Id. at 1057-58; see also United States v. Buck, 548 F.2d at
874-75 (independent source ruling affirmed; tapes and log summaries disclosed
to defendants).19

48

We recognize that Sherrie has not proven, and may never prove, that any of her
conversations were intercepted by the Virginia authorities. Nevertheless, we are
constrained to hold on the facts of this case that Sherrie should be given a more
meaningful opportunity to prove her case. There was a wiretap of Trevis
Poole's phone; given the relationship between the Apples and Poole, it is
reasonable to assume that Sherrie would have made calls to Trevis's phone, and
she averred that she did; evidence from the Virginia investigation was passed
along to the state and federal authorities investigating the Apples; and the
government has offered no reliable proof that Sherrie's conversations were not
intercepted during the Virginia investigation. The district court abused its

discretion when it ruled on the independent source issue before the government
had adequately denied the occurrence of the alleged illegal surveillance.
E
49

The judgment in Sherrie's case must be vacated and remanded for further
proceedings under 18 U.S.C. Sec. 3504(a)(1). Upon remand, the government
may make a factual, unambiguous, unequivocal showing that none of Sherrie's
conversations were intercepted during the wiretap of Trevis Poole's telephone.
See United States v. Alter, 482 F.2d at 1027.20 If the government discovers that
some of Sherrie's conversations were intercepted during the wiretap, the
records of those conversations must be disclosed; the district court may then
exercise its discretion to determine whether additional disclosure should be
ordered. See Alderman, 394 U.S. at 184-85, 89 S.Ct. at 972-73. The district
court will then be in a position to consider the independent source issue.
Alternatively, the government may seek to demonstrate that the Virginia
wiretap was not an "unlawful act" under Sec. 3504. In the event that the
government adequately denies the occurrence of the alleged unlawful act, or the
district court finds that the government's evidence was developed from
independent sources or was sufficiently attenuated from the illegal
interceptions, the court may reinstate its judgment. Contrary findings will
necessitate a new trial with the tainted evidence suppressed.

III
50

Stacy challenges the sentence imposed by the district court under the United
States Sentencing Guidelines. He argues that the district court erred in failing to
recognize that it had discretion to depart on account of his serious illness,
committed clear error in finding that he did not affirmatively accept
responsibility for his crimes, and erroneously enhanced his base offense level
for possession of a firearm during the commission of a drug offense. Sherrie
also appeals the enhancement of her sentence for possession of a firearm during
the commission of a drug offense. We consider these assignments of error in
order.

51

* The district court analyzed Stacy's request for departure on account of his
illness under Sec. 5K2.0, p.s., of the Guidelines. Section 5K2.0 provides a
general basis for departure from a Guidelines sentence where the court finds
that " 'there exists an aggravating or mitigating circumstance of a kind, or to a
degree not adequately taken into consideration by the Sentencing Commission
in formulating the guidelines.' " U.S.S.G. Sec. 5K2.0, p.s. (quoting 18 U.S.C.
Sec. 3553(b)). The determination whether to depart under Sec. 5K2.0 and Sec.

3553(b) presupposes a two-part inquiry: first, the court must determine whether
an aggravating or mitigating factor was not "adequately taken into
consideration" and whether, as a factual matter, the factor is present in the
particular case; second, the court determines whether the factor is of sufficient
magnitude to justify departure. See United States v. Summers, 893 F.2d 63, 66
(4th Cir.1990). Where the district court has departed, the court's determination
whether a factor was adequately taken into consideration is reviewable de novo,
the factual determination whether the factor is present in a particular case is
subject only to clearly erroneous review, and the step-two determination
whether the factor found is of sufficient magnitude to justify departure is
reviewed for abuse of discretion. See id. at 66-67. The court's refusal to depart,
however, is not reviewable on appeal. See United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir.), petition for cert. filed, 59 U.S.L.W. 3016 (U.S. June 7,
1990) (No. 89-1934).
52

The district court's refusal to depart in this case on account of Stacy's illness is
not reviewable on appeal. In an attempt to avoid this rule,21 Stacy contends that
the court's refusal to depart was based on its mistaken assumption that it lacked
the authority to depart. See Bayerle, 898 F.2d at 31 (district court's erroneous
belief that it lacked the authority to depart reviewable as sentence imposed "in
violation of law" under 18 U.S.C. Sec. 3742(a)(1)). The record, however,
refutes this contention--the court carefully considered whether Stacy's illness
justified departure under U.S.S.G. Sec. 5K2.0 and found, based on "all the
facts," that departure was not warranted. See supra.22 We also note that the
court did sentence Stacy near the bottom of the applicable Guidelines range.
See Summers, 893 F.2d at 66 (factor may be of sufficient significance only to
affect point within Guidelines range at which defendant is sentenced).

B
53

The Sentencing Commission addressed adjustments in sentence to reflect

acceptance of responsibility in Guideline Sec. 3E1.1. Section 3E1.1 provides
for a two level reduction in base offense level where "the defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). The reduction
of offense level "recognizes legitimate societal interests"; "a defendant who
clearly demonstrates a recognition and affirmative acceptance of personal
responsibility for the offense by taking, in a timely fashion, one or more of the
actions listed [in the commentary] (or some equivalent action) is appropriately
given a lesser sentence than a defendant who has not demonstrated sincere
remorse." Id. comment. (backg'd) (emphasis added). The commentary to
Guidelines Sec. 3E1.1 includes a nonexclusive list of factors that can be

considered in making the determination whether the defendant has accepted

responsibility, including "the timeliness of the defendant's conduct in
manifesting the acceptance of responsibility." Id., comment. (n. 1(g)). A
defendant who enters a guilty plea is not entitled to a sentencing reduction as a
matter of right, id. Sec. 3E1.1(c); a guilty plea may provide some evidence of
the defendant's acceptance of responsibility, but it does not by itself entitle a
defendant to the two level reduction. Id., comment. (n. 3). "The determination
whether a defendant 'clearly demonstrates a recognition and affirmative
acceptance of personal responsibility' is a factual issue, and the district court's
decision not to reduce the offense level will not be disturbed unless clearly
erroneous." United States v. Harris, 882 F.2d 902, 905 (4th Cir.1989).
54

The district court's determination that Stacy did not clearly demonstrate
affirmative acceptance of responsibility is not clearly erroneous. The court
rightly noted that Stacy's guilty plea alone did not justify departure. The fact
that he did not plead until after his wife was convicted and his own trial was
fast approaching tends to show lack of affirmative acceptance of responsibility.
See United States v. White, 875 F.2d 427, 432 (4th Cir.1989). Stacy's
contention that the district court should not have taken into consideration his
refusal to cooperate in determining his acceptance of responsibility is meritless.
The fact that failure to cooperate is not enumerated in the Guidelines
commentary as a factor that courts may consider does not imply that a court
may not find that a defendant's failure to cooperate demonstrates lack of
acceptance of responsibility in a particular case. See U.S.S.G. Sec. 5K1.2, p.s.,
comment. (backg'd) (Nov. 1987) ("Refusal to assist authorities based upon
continued involvement in criminal activities and association with accomplices
may be considered ... in evaluating a defendant's sincerity in claiming
acceptance of responsibility.");23 cf. id. Sec. 3E1.1, comment. (n. 1(e))
(voluntary assistance to authorities in recovery of fruits and instrumentalities of
offense is appropriate consideration). Stacy also questions the district court's
finding that his objections to the government's statement of facts indicate a
failure to affirmatively accept responsibility for his crimes. Even accepting the
premise of this argument, that a defendant should not be penalized for trying to
correct errors he sincerely believes exist in the statement of facts that will
accompany his plea agreement, we think that Stacy's unwillingness to "agree"
to the amended statement of facts reflects a continuing reluctance to recognize
and accept his criminal conduct. In any event, the court had a sufficient basis
for finding that Stacy failed clearly to demonstrate affirmative acceptance of
responsibility.

C
55

The district court enhanced Sherrie's base offense level two levels pursuant to

55

The district court enhanced Sherrie's base offense level two levels pursuant to
U.S.S.G. Sec. 2D1.1(b)(1) and enhanced Stacy's base offense level on similar
reasoning at his subsequent sentencing hearing. Guidelines Sec. 2D1.1,
applicable to drug offenses, mandates that "[i]f a dangerous weapon (including
a firearm) was possessed during commission of the offense, increase [base
offense level] by 2 levels." U.S.S.G. Sec. 2D1.1(b)(1). The commentary adds
that the adjustment "should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense. For
example, the enhancement would not be applied if the defendant, arrested in his
residence, had an unloaded hunting rifle in the closet." Id., comment. (n. 3).
The determination whether a firearm was present in the sense that it justified
enhancement is a factual determination subject to clearly erroneous review. See
United States v. Koonce, 884 F.2d 349, 353 (8th Cir.1989).

56

The Montgomery County Police seized four handguns along with drugs,
paraphernalia, and records when they executed their search of the Apples'
Maryland residence on August 14, 1987. The government also showed at
Sherrie's trial that drug sales transactions and conspiratorial meetings occurred
at the Apples' New York apartment in the spring of 1988. A handgun was
seized when the FBI searched the Apples' New York apartment on May 20,
1988. The court enhanced Sherrie's sentence based on the finding that she "was
well-aware of the existence of firearms in her home." The court enhanced
Stacy's sentence based on the finding that "[o]ne or more firearms were found,
both in the Apples's [sic] New York City apartment and in their Montgomery
County home."

57

Sherrie contends that the Sec. 2D1.1(b)(1) enhancement is inapplicable because

she had left the New York apartment some time before the seizure and was not
arrested there, because no drugs were seized there, and because there was no
positive testimony that the gun was present during the illegal acts supporting
her conviction. She argues that the Maryland guns were seized prior to the
effective date of the Guidelines and therefore should not be considered by a
court sentencing under the Guidelines.

58

Stacy contends that his record for purposes of sentencing should be strictly
limited to the statement of facts appended to his plea agreement and that the
statement of facts contains no mention of any criminal activity in the New York
apartment. Therefore, he argues, he cannot be charged with possession of the
New York gun during the commission of a drug offense. He also argues that
the Maryland guns may not be considered because the court found, in the
context of determining which of Stacy's prior convictions could be counted in
establishing his Guidelines criminal history category,24 that the conspiracy in

count one, to which Stacy pled guilty, did not begin until the fall of 1987. See
J.A. at 796-97. Since the guns were seized in August 1987, they could not have
been possessed during the commission of the offense.
59

We think that both Sherrie and Stacy have raised substantial questions that the
district court's stated reasons for imposing sentence enhancement under Sec.
2D1.1(b)(1) did not address. Under the Sentencing Reform Act, "[t]he court, at
the time of sentencing, shall state in open court the reasons for its imposition of
a particular sentence." 18 U.S.C. Sec. 3553(c). " 'Reasons' means something
more than conclusions--a distinction important not only to the defendant whose
future is at stake but also to the appellate process, for once the judge passes on
contested issues of fact, and application of law to fact, our review is
deferential." United States v. White, 888 F.2d 490, 495 (7th Cir.1989). Where
substantial questions are raised respecting whether a defendant possessed a
firearm during the commission of a drug offense within the meaning of the
Guidelines, the sentencing court should explicitly state the reasons why
enhancement under the Guidelines is appropriate. See United States v. Durrive,
902 F.2d 1221, 1231 n. 8 (7th Cir.1990).

60

The district court's statements of reasons in these cases were inadequate, and we
find ourselves unable in consequence properly to review its sentencing
dispositions. The commentary to Sec. 2D1.1(b)(1) makes clear that the
Commission did not intend that the mere fact that a weapon was found in the
home of the defendant is necessarily sufficient for enhancement under that
section. U.S.S.G. Sec. 2D1.1(b)(1), comment. (n. 3). Yet the district court's
"reason" for enhancing Stacy's sentence under Sec. 2D1.1(b)(1) was simply
that weapons were found in the Apples' residences. The court's reason for
enhancing Sherrie's sentence was slightly more revealing--the court determined
at least that Sherrie was "well-aware" of the existence of the guns in her
"home."25 Even that reason, however, is not inconsistent with a finding that it
was "clearly improbable" that the weapons were connected with her offenses.
See id.

61

Since the district court sentenced both Sherrie and Stacy without stating
adequate reasons for enhancement under Sec. 2D1.1(b)(1), we must remand
both cases for further proceedings.26 See 18 U.S.C. Sec. 3742(f)(1). On
remand, if the court determines that it is not "clearly improbable" that either or
both appellants possessed a weapon during the commission of an offense and
that enhancement under Sec. 2D1.1(b)(1) is still appropriate, the court should
first make clear whether it is enhancing their respective sentences based on the
New York gun or the Maryland guns. If enhancement is based on the Maryland
guns, the court should address in its Sec. 3553(c) "reasons" the contention that

the Maryland guns were seized prior to the commencement of the conspiracy
for which either appellant was convicted and therefore cannot have been
possessed "during commission of the offense."27 The mere fact that the
weapons were seized prior to the effective date of the Guidelines would not
preclude the court from considering them in sentencing if they were possessed
during the commission of an offense. If enhancement is based on the New York
gun, the court should address Sherrie's temporally-based contention that it was
"clearly improbable" that she possessed the handgun found in the New York
apartment during any drug transactions that occurred there some months before.
Sherrie's contention that she had separated from Stacy and moved out of the
New York apartment also presents the question of her withdrawal from the
conspiracy. The fact that the New York gun was not mentioned in the statement
of facts appended to Stacy's plea agreement would not prevent the court from
considering it; the agreement itself indicates that the court was not bound by
the stipulated facts and was free, with the aid of the presentence report and "any
other relevant information," to determine the facts relevant to sentencing. J.A.
at 908-09. The court must still state its reasons for finding that Stacy did
possess that gun during the commission of an offense.
IV
62

In case No. 89-5066, the judgment of conviction against Sherrie Apple is

vacated and the case is remanded for further proceedings consistent with this
opinion. In case No. 89-5423, the judgment of conviction against Stacy Apple
is affirmed; we vacate the sentence imposed and remand for further sentencing
proceedings.

63

SO ORDERED.

For convenience, we will refer to the appellants by their first names

Two of the handguns apparently were found on a bookshelf in an office in the

home, another was found in a box in the foyer, and the fourth was found in a
basement room. At least two of the guns apparently were loaded

The state criminal charge was subsequently dismissed by the state's attorney

See 21 U.S.C. Sec. 846

See 21 U.S.C. Sec. 841(a)(1)

See 21 U.S.C. Sec. 846

See 21 U.S.C. Sec. 841(a)(1)

See 21 U.S.C. Sec. 843(b)

The legality of the Poole wiretap has never been determined in either federal or
state court

10

Sherrie's trial had been severed by the district court. See Fed.R.Crim.P. 14

11

The government had dismissed counts three, four, and five prior to the trial

12

The court found that Sherrie suffered from chronic depression and was a
battered wife

13

The district court had granted Stacy's motion to adopt Sherrie's motions on the
electronic surveillance issue

14

The relevant sentence in the plea agreement read: "This Office [United States
Attorney] and Mr. Apple understand, agree and stipulate to the statement of
facts attached hereto and incorporated herein." Joint Appendix (J.A.) at 908

15

The six federal agencies were the FBI, the DEA, the Bureau of Alcohol,
Tobacco, and Firearms, the Customs Service, the Postal Service, and the Secret
Service

16

Consensual interceptions of communications are not covered under Title III

It shall not be unlawful under this chapter for a person acting under color of law
to intercept a wire, oral, or electronic communication, where such person is a
party to the communication or one of the parties to the communication has
given prior consent to such interception.
18 U.S.C. Sec. 2511(2)(c).

17

Sherrie argued that the Virginia wiretap was illegal because the authorities
failed to first exhaust other investigative means before seeking the wiretap and
because the affidavits submitted in support of the order authorizing the wiretap
were conclusory and misleading. The relevant federal and state statutes provide
in identical terms that the application for the court order authorizing the
wiretap shall include "a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec.
2518(1)(c); Va.Code Ann. Sec. 19.2-68(A)(3) (1990). As we have noted, the

substance of Sherrie's claim has never been addressed

18

The Peterson court's independent source ruling respecting certain illegal

wiretaps at issue in that case is unexceptional under the law we have described
above. See 812 F.2d at 489-90

19

We are not confronted with the situation where the government is unable to
provide tapes or transcripts of intercepted communications because the records
have been destroyed. See United States v. Garcilaso de la Vega, 489 F.2d at
763-65; United States v. Huss, 482 F.2d at 45-51

20

We will not strictly require that the government's denial be in the form of a
sworn affidavit. See United States v. Williams, 580 F.2d at 585 n. 38

21

Bayerle had not yet been decided when the parties filed their briefs in this case.
Both parties, however, noting decisions in other circuits, addressed the question
whether a discretionary refusal to depart was reviewable on appeal

22

The district court's determination that the facts in this case did not warrant
departure, the second step in the Summers approach, see 893 F.2d at 66,
obviates any need for us to determine whether the Sentencing Commission
failed to take into consideration an offender's life-threatening illness in
formulating the Guidelines. Cf. United States v. Ghannam, 899 F.2d 327, 329
(4th Cir.1990) ("Section 5H1.4 allows downward departures any time a
sentencing court is presented with sufficient evidence of impairment.").
Defense counsel admitted at oral argument before us that he did not press for
departure under Sec. 5H1.4 at Stacy's sentencing, which was held before
Ghannam was decided. See J.A. at 779-83; see also Appellant's Brief at 13 n. 4
("United States Sentencing Guidelines Sec. 5H1.4, while possibly applicable,
seems to be referring to actual physical conditions, such as handicaps or being
on a respirator.")

23

The background commentary noted in the text was part of the Guidelines when
Stacy was sentenced. The Guidelines were amended, effective November 1,
1989, to "delete [this] unnecessary commentary containing an unclear
example." U.S.S.G. App. C, at 150-51. We need not determine whether this
amendment reflects an intent on the part of the Commission to foreclose
consideration of a defendant's failure to cooperate in evaluating his acceptance
of responsibility. See 18 U.S.C. Sec. 3553(a)(4), (5) (Guidelines and policy
statements in effect on date defendant is sentenced are considered by sentencing
court)

24

See U.S.S.G. Sec. 4A1.1(a) & comment. (n. 1) (sentence imposed more than
fifteen years prior to defendant's commencement of instant offense not counted)

25

We are not able to determine from the record whether the district court was
specifically referring to either the Maryland home or the New York apartment,
or both

26

The district court's imposition of sentence in Sherrie's case is contingent upon

the court's determination, after consideration of the illegal surveillance issue as
outlined supra, that a new trial is not warranted

27

This argument was raised by Stacy, but would seem applicable to both
appellants. Both were convicted of the same conspiracy counts